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‘I have examined merit-based appointments and assume that all appointments are made based on merit,’ says Irwin Cotler.

As Law Times reported last week[/em][/a], the government has named several judges who had either been candidates for the party or campaign workers or volunteers for the Conservatives or their provincial cousins.

Justice Thomas McEwen of Pickering, Ont., for example, donated nearly $948 to the Conservatives on Mar. 1, 2008. Nearly a year later, the government appointed him to the Ontario Superior Court.

Justice Michael Parayeski, also of Hamilton, gave $500 to the governing party on May 13, 2009. One month later, the government made him a judge.

Meanwhile, Justice Brian Abrams in Kingston, Ont., made a $227 contribution to the Conservative party in June 2009, according to Elections Canada data. Appointed last year, he had previously been the Conservative party candidate for his local riding.

Law Times contacted all of the judges it found had made donations before their appointments last year to give them an opportunity to comment. None of them chose to do so.

Despite the donations, former justice minister and current Liberal MP Irwin Cotler warns that campaign contributions to either a governing Liberal or Conservative party don’t necessarily lead to judicial appointments.

“I have examined merit-based appointments and assume that all appointments are made based on merit,” said Cotler in an email to Law Times.

Still, other Liberal MPs have made allegations of patronage against the Conservative government and Prime Minister Stephen Harper in recent months.

“From judges to nuclear safety commissioners, they all have one thing in common, direct ties to the Conservative Party of Canada,” said Liberal Leader Bob Rae in a press release this month about the government’s recent Senate appointments. “Just since the 2011 election, over a hundred Conservative friends have been rewarded by Harper with high-paying jobs.”

Rae added in his press release that the government should be basing appointments on merit rather than contributions or insider status.

“This is the same Stephen Harper who told Canadians that patronage has no place in the Parliament of Canada, and that he had no intention of making partisan appointments,” said Rae. “He broke that promise. Canadians think the appointment process should be based on merit, not insider status.”

But a look at contribution data from Elections Canada shows the Liberals had also appointed several judges who contributed money to the party during their time in office.

In fact, a 2007 University of Guelph study looking at judicial appointments and political patronage found that of the 978 judicial appointments between 1988 and 2003, at least 30 per cent involved people who had made donations to the governing party.

The study found similar results for former Progressive Conservative prime minister Brian Mulroney’s government as well.

The result, the Canadian Bar Association argued in a 2005 review of the federal judicial appointments process in Canada, is a negative perception of the system.

“Canadians expect, and are entitled to have, judges who are well qualified and independent of political influence,” the CBA review stated.

“If judicial candidates were intimately involved in the political sphere close to the time when they were appointed, public perception of patronage is heightened and judicial independence suffers through the ‘politicization’ of the relationship between the judiciary and the branches of government.”

In the meantime, the CBA review added, the government should consider other alternatives before judges who have contributed to political campaigns in the past join the bench. They include a cooling-off period between political activity and a judicial appointment.

“Justice thrives when it is administered in an open and transparent fashion and withers when it operates in secret according to the dictates known only by the few,” the review concluded.

“Especially in an era where judges are commonly confronted with fundamental questions relating to the privacy, security, and equality of Canada’s citizens, and how to resolve conflicts between these principles, it is critical that the judicial appointment process is open to public scrutiny, maintains the high quality of judicial appointments, and protects judicial independence, to ensure the legitimacy of such critical decisions.”

The federal Justice department referred all questions about the issue of patronage and judicial appointments to the provincial Ministry of the Attorney General. The ministry said it had no comment on the issue.

As a longtime critic of political appointments to the judiciary, the report that Conservative Party donors and supporters are being appointed to the Bench is cause for concern. However it would be interesting to know how many other judicial appointments were made of persons who had no Conservative Party ties?

Participation in the political process should not automatically serve as an exclusion from judicial appointment. The crucial question is whether judicial selection is based on merit. A selection process designed to appoint judges on merit would be highly desirable.

The largest contribution to the Conservative party mentioned in this article appeared to be $1000.If that's all it takes, then federal judicial appointments come pretty cheap. Something tells me there's more to it than that, like ability maybe?It would also be interesting to see how many provincial appointees were connected in one way or another with the governing party when Bob Rae was premier.

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